These points are from a talk given by Beatriz San Martin at
fieldfisher’s Pharma Patents Seminar on 16 October 2014.
1. There are 4 types of injunction: pre-action (very rare in
the UK), interim, final and cross-border.
2. The Enforcement Directive 2004/48/EC made interim and
final injunctions available across Europe. They are discretionary and subject
to national law, and are not harmonised.
3. Cross-border injunctions are only available if validity
is not challenged (GAT v Luk [2006]). Though Solvay v Honeywell [2012] decided
interim injunctions were available even if validity was challenged. See Bird
& Bird’s comments on GAT v Honeywell here
and comments on Solvay v Honeywell from CMS here.
4. In the UK an injunction is a discretionary remedy where
no other form of remedy is adequate. It is contempt of court to not comply and
the applicant has a duty of full and frank disclosure.
5. The American Cyanamid guidelines view the granting of
injunctions as a ‘serious question’ in issue. The adequacy of damages, balance
of convenience and special factors (e.g. the undertakings) must be considered.
6. Interim injunctions are more common in pharma cases and
final injunctions are standard. When granting an injunction the Court may look
at whether the alleged infringer acted to ‘clear the way’ of infringed patents
(SmithKline Beecahm v Apotex [2002]). However in Cepahlon & Ors v Orchid
& Anor [2010] failure to clear the way did not lead to an injunction being
granted. Merck v Teva [2012] and Novartis v Hospira [2013] though seem to show
a hardening of approach towards infringers. See Bird & Bird’s comments on Cepahlon
& Ors v Orchid & Anor [2010] here.
7. In other EU countries:
In Germany different courts have different approaches. The
Dusseldorf court is seen as a friendly court for interim injunctions in pharma
cases. The focus is more on the merits of the case rather than economic
arguments. It may grant ex-parte interim injunctions. The bifurcated system
often results in injunctions before the outcome of the validity action.
In France an injunction will be granted based on the
likelihood of patent infringement.
In Austria injunctions are common and this is considered a
pro-patentee system.
8. The Unified Patent Court raises new issues. A pan-European
injunction will be possible and forum shopping will probably happen when asking
for injunctions.
You may also wish to see related articles 10
Points on What Patent Judgments Achieve and 10
Points on Open Innovation.
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